The Long Arm of NICA: Two ways NICA will prevent you from filing a negligence lawsuit if your child develops a neurological injury in a hospital nursery.

Florida’s Birth-related Neurological Injury Compensation Association (NICA) prevents potential plaintiffs from filing negligence claims against doctors or other healthcare providers if a child’s injury qualifies for NICA coverage and other requirements are met. Injuries that qualify for NICA coverage are brain or spinal cord injuries caused by oxygen deprivation or mechanical injury during labor, delivery, or in the immediate post-delivery period.

Infants who are in a hospital nurseries aren’t generally placed there immediately post-delivery. However, the first way NICA can prevent you from filing a negligence claim against your doctor even if your child suffers a neurological injury in the hospital nursery is that they will say the injury was really suffered earlier and that it only became noticeable later in the nursery. This is one way around the rule that the infant must be injured during labor, delivery, or in the immediate post- delivery period to be covered by NICA.

The second way that NICA will prevent you and your child from filing a negligence lawsuit in court if your child develops a neurological injury in a hospital nursery is that the court with extend what is generally considered to be the “immediate post-delivery period.” They will say that although the injury occured up to seven days after delivery, that your baby’s injury occured in the immediate post-delivery period and is therefore covered by NICA. They will say that the immediate post -delivery period is extended in your case because the child was delivered in a life threatening condition and did not stabilize before suffering injury or death.

These two arguments both came into usage in the last two years. The first argument arose in a case involving Tristan Bennett who was born in Jacksonville, Florida after her mother was in a car accident. At the hospital, Tristan’s mother suffered kidney failure and Tristan was delivered by caesarean section. Infant Tristan had to be manually resuscitated at delivery and suffered both kidney damage and liver damage.

Seven days later while still in the special care nursery, Tristan suffered bleeding in her lungs that caused them to fail and started a chain reaction that caused multi-organ failure and seizures. After that episode, Tristan was diagnosed with neurological injury and cerebral palsy. Though there was evidence indicating that Tristan suffered neurological injury in the nursery, the court ruled that it had occured during labor and only became noticeable later.

The second of the two arguements arose in a case involving Harper Dean Stever, whose mother came to the Orlando Regional South Seminole Hospital with complaints of contractions and blood-tinged fluid discharge. At the time, the fetus was at 40 weeks. Doctors gave Mrs. Stever pain medication and continued to monitor her and her baby’s heart rate and regular uterine contractions. However, Mrs. Stever came down with a fever and Harper’s heart rate increased to more than 180 beats per minute.

As a result, doctors delivered Harper Dean Stever by cesarean section. At the time of delivery, there were large amounts of fetal stool oozing through the surgical incision. Harper’s heart rate was initially noted as less than 100 beats per minute and he was given oxygen. However, he was not breathing spontaneously, and his heart rate rapidly slowed to 60, and staff initiated chest compressions.

Harper was transferred to the special care nursery where resuscitation efforts continued and Harper was put on an artificial respirator. His oxygen levels were near normal for some time in the nursery. Oxygen levels are the key indicator of potentially impending neurological injury. However, Harper began to decline again and he was placed on a a heart/lung bypass machine. He continued to decline despite massive resuscitation efforts until he became brain dead and was taken off life support.

It was this case in which the court extended the time period encompassing the “immediate post-delivery period.” Because Harper never stabilized, the court extended the immediate post-deliver period out six days. In Harper’s case, it is difficult to say that he ever stabilized, but in Tristan’s case, stabilization was acheived. However, Tristan’s court said that they would be inclined to extend the immediate post-delivery period in her case also because she was born with a life-threatening condition and required “close supervision.”

Close supervision is different from not stabilizing. Plaintiffs should be aware of NICA courts’ potential tendency to further extend the immediate post-deliver period by using new phrases such as close supervision. Current precedent requires that the infant failed to stabilze, not that they required close supervision.

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